Democrats Are Headed for a Disaster With Unfilled Judicial Vacancies / Christopher Kang

Democrats Are Headed for a Disaster With Unfilled Judicial Vacancies / Christopher Kang

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Jurisprudence

Democrats Are Headed for a Disaster With Unfilled Judicial Vacancies

There’s only one way to fix it.

Chuck Schumer holds his hand to his head.

Senate Majority Leader Chuck Schumer at the U.S. Capitol on March 1. Justin Sullivan/Getty Images

At the end of his first year in office, President Joe Biden’s staff rightly trumpeted the fact that he had nominated and confirmed a historic number of judges at the start of his first term in office. After decades of Republicans outpacing Democrats in focus on the courts, it was welcome news. But today, as terrible decisions from the Supreme Court offer a stark reminder of the importance of the judiciary, we face a tough reality: even an historic pace has not been enough to keep up with the rate of judicial retirements, and President Biden and Senate Democrats are on track to leave more than 60 judicial vacancies open at the end of this year. With the possibility looming that Republicans may retake the Senate, we know that leaving any vacancy open in January could well mean letting a newly empowered Mitch McConnell blockade them, just as he did President Barack Obama’s picks, from Merrick Garland’s Supreme Court nomination to dozens of lower court nominees.

It’s time for Senate Democrats and the Biden White House to push beyond their current practices in order to fill all of the judicial vacancies by the end of this Congress. As someone who worked on judicial nominations in the Senate and the Obama White House, I know how hard it can be for Democrats to challenge norms, but we have seen Republicans stop at nothing in their relentless push to take and retain control of the federal judiciary to impose their extreme, partisan agenda on a majority of Americans who oppose it. Our federal courts are so far out of balance that we need the president and the Senate to do everything in their power to ensure justice and equality. That means filling every vacancy, even if it means breaking with the few remaining judicial confirmation process norms left in McConnell’s wake or standing up to Republican senators. Beginning to bring balance to our judiciary is more important than respecting Senate traditions.

A more aggressive approach to judicial confirmations starts at the White House. Today, there are more than 80 judicial vacancies without nominees, out of 119 announced vacancies. One of the driving causes for this is too much White House deference to senators—both Democratic and Republican. The Biden administration needs to take a more assertive approach and show it is willing to bypass Senate tradition if senators are not proving good partners.

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In states with Democratic senators, the White House is honoring a longstanding tradition that allows senators of the president’s party to recommend district court candidates to the White House. This is fine, but the White House needs to be firmer in enforcing its own deadlines in states where senators are moving too slowly. Even before Biden’s inauguration, White House Counsel Dana Remus told Democratic senators to submit recommendations within 45 days of a vacancy being announced, but it is clear from the number of long pending vacancies without nominees that many senators are ignoring this timeline. In California alone, there are nine district court vacancies without nominees—five of which were announced more than a year ago. Time is running out, and the White House needs to start enforcing its request by bypassing senators where necessary.

To move forward with nominations in states with Republican senators, the White House and Senate Judiciary Chair Dick Durbin must be willing to bypass a Senate tradition known as blue slips, which allow any senator to functionally veto district court nominees in his or her own state. This tradition was weaponized by segregationist senators to stop pro-civil rights judges nominated in their home states, and during the Obama administration, it persisted as an enormous obstacle to diversifying the judiciary. Anyone who thinks the White House can work with Senate Republicans on judicial nominations should look at Wisconsin, where Sen. Ron Johnson recommended a qualified district court candidate, only to abruptly pull his support after the nomination was actually announced. It’s worth noting that when Republicans controlled the Senate under Donald Trump, they ignored blue slips from Democratic Senators on circuit court nominees, effectively dismantling that deference for Democrats when they are out of power. Abolishing the blue slip custom once and for all will require cooperation from the Senate, but the White House should force the issue and expose the absurdity of the system by nominating qualified, professionally diverse nominees in these states and daring the Senate to block them.

The White House increasing nominations will be of little use, though, if the Senate Judiciary Committee ends up serving as a bottleneck. Before being confirmed, each judicial nominee must appear before the committee for a hearing. As a result, the number of hearings scheduled and the number of nominees who can appear at each hearing are probably the most important factors in determining how many nominees will be confirmed before the end of this Congress. Right now, committee Democrats are following norms and recent practices, but this is simply not sufficient to fill every judicial vacancy—and indeed, sets a path that would leave more than 60 seats open.

The norm is for the committee to hold a nomination hearing every two weeks that the Senate is in session. At that pace, it will hold only six more hearings with enough time for committee votes this year. The current practice—which was set when Republicans expanded it to process Trump judges more quickly—calls for two circuit and three district nominees per hearing. So this schedule would allow for hearings for only 30 judicial vacancies, while 65 receive no committee consideration at all—and that assumes that every hearing slot is used for lifetime judicial nominees, even though just last week, the committee gave a slot to a Department of Justice nominee.

Despite this stark reality, a judiciary committee aide recently told Bloomberg News, “I don’t think there’s any reason for us to change the way we’re operating.” That’s simply wrong. The judiciary committee must take a page out of the playbook Senate Republicans used during the Trump administration and schedule additional hearings and add to the number of nominees who can be considered at each hearing. Holding more hearings may be less convenient for those involved, but with so much at stake, it’s essential the committee follow the Republican model set during the Trump administration, which included holding hearings in consecutive weeks and even while the Senate was in recess.

Once nominees receive committee hearings and votes, they will need time on the Senate floor to be confirmed. Republicans are doing everything they can to slow down Biden nominees, and if President Biden and the judiciary committee ramp up the speed of nominations, Senate Democrats will need to match Republicans’ fortitude, skipping or delaying recesses and staying in Washington over weekends to vote if necessary.

None of these steps should require the Biden administration to compromise on the quality of judges it is putting forward. One of President Biden’s most impressive judicial legacies in his first year in office was the record-breaking number of public defenders and civil rights lawyers he nominated, a sharp departure from the old paradigm of Democrats primarily drawing from the ranks of prosecutors and corporate lawyers. The White House must not undermine its well-earned legacy on the courts by curbing its focus on professional diversity or accepting deals that would include conservative extremists. Instead, it must rally Democrats together—at every stage of the nomination and confirmation process—to fill every vacancy with judges dedicated to justice and equality. More than 30 national organizations already agree. Now more than ever, our courts—and our country—demand nothing less.